“Listen, most of the people we get off are intoxicated. But that’s the justice system,” he says. “I’ve always thought people would be very concerned if they knew what we were doing.”
Tyler: You know that you’re talking to a reporter, right?
And you know that he’s most likely going to print what you say?
You know that what he prints is going into a weekly newspaper with print circulation over 600,000?
You know that among that 600,000 are more potential jurors than potential clients?
And you want to tell them that most of your clients are intoxicated?
This probably didn’t occur to you, but some of those readers will draw broader conclusions. Some of the jurors on my next DWI case are going to have read your claims that most of the people you get off are intoxicated. And some of them are going to assume that it’s true of my clients as well.
Gee. Thanks, Tyler.
Wait, wait. That’s just the effect on me and every other lawyer trying DWIs in Houston.
For you, it gets even better.
The Houston Press is published online. There’s a permanent record of every word ever said about you online. And jurors can use the web to research the lawyers on their cases. Which they do.
So the next time you have a jury picked, when they break for the evening some of them are going to go home and look you up. And, along with all of your marketing efforts, they’re going to find the Houston Press article. And they’re going to learn that most of your clients are intoxicated. And they’re going to return to court the next morning. They’re going to share what they’ve learned with their fellow jurors. And, armed with that knowledge, they’re all going to be looking for confirmation that this particular client fits that pattern.
Had it gotten too easy? Were jury trials too fair for you? Not stimulating enough? Did you have to add this additional presumption of guilt to your clients’ burden to get excited?
Those reading along at home might be asking: Is it true? Are most people accused of DWI intoxicated?
If it’s true that most of Tyler’s clients are intoxicated (or it may be hyperbole), then there’s either something strange going on with his clientele, or something strange going on with mine.
Almost universally, whether my clients charged with DWI were intoxicated is doubtful. Their videos look okay—they could show intoxicated people, or could show ordinary people who are nervous and tired. Family and friends watching my clients’ DWI videos usually agree: it looks like they have the normal use of their faculties, which is the central issue in most DWI trials.
The DWI cops, hungry for overtime, hang their hats on the voodoo of HGN—horizontal gaze nystagmus. The Press article calls the HGN “pen test” “the most incriminating in the field sobriety lineup,” but juries disagree; they can’t see it, and generally don’t buy it.
Is it just me, representing all of the factually-innocent people charged with DWI? No. From the same article, comments by Houston DWI lawyers Gary Trichter and Doug Murphy:
[Gary] Trichter was a cop in the 1970s before switching to criminal defense, which he views as another way to enforce the law — by keeping the state in check. He started with drug cases. “If you were interested in being a Constitutional lawyer, that’s where you needed to be,” he says.
But according to Trichter, the brunt of the state’s abuse of power soon shifted to DWI, for which he estimates more innocent people are arrested than any other crime combined. Trichter paints breathalyzers as junk science, field sobriety tests as outrageous affairs cooked up to incriminate, and forced blood tests, which take place during no-refusal weekends and have recently been permitted in any stop involving a child passenger or an injury, as a menacing specter for a modern democracy.[Doug] Murphy, who runs Trichter’s Houston office now that Trichter has relocated to the cowboy town of Bandera, says if a cop smells any alcohol at all on your breath, you’re likely getting arrested. He points to the signs found on highways throughout the state. “Drink, Drive, Go to Jail is not the law,” he says. “But it is exactly how it’s enforced.”
Murphy claims cops target people driving nice cars or from nice bars for DWI arrests, hoping they’ll pay to fight in court, which brings extra overtime. He keeps handy a 2006 Houston Chronicle article that found one DWI officer making more than $100,000 of overtime in a single year. DWI lawyers say they now get a huge chunk of business from Washington Avenue. (They should get another boost from the 1,200 convictions that will be revisited now that a Texas Department of Public Safety employee was caught faking breathalyzer inspection records.)
That—junk science, rigged tests, the overtime game, the lies cops tell to make cases stick—would make a great article, and one that would have benefited society as well as one self-aggrandizing lawyer. But that’s not the story that Mike Giglio wanted to tell, and it’s not the story that Tyler Flood was telling him.
Given the bully pulpit, why wouldn’t Tyler want to tell the story of bad arrests and junk science, to the benefit of each of his clients and of society generally?
Maybe he saw an advantage in telling the “I get factually-guilty people off” story. Maybe his potential clients who weren’t intoxicated will figure that if Tyler can get off people who are intoxicated, their cases will be easy by comparison.
On the other hand, though, those same innocent people might—not unreasonably—want to distance themselves from the lawyer who publicly claims that most of his clients committed the crime they are accused of. That’s a club few people would want to join.